39 Ind. App. 617 | Ind. Ct. App. | 1907
Action by appellee against appellant for damages for personal injuries alleged to’have been received by him while in the employ of appellant Appellee was engaged in hauling coal for appellant in one of its coal mines, and his business was to drive from the cross entry into the main entry of the mine, in which the hoisting shaft was located. It is alleged in the complaint that the appellant failed and neglected to take any precautions whatever to prevent collisions between the drivers on the main entry and the drivers on said cross entry. A demurrer to the complaint for want of facts was overruled, an answer in general denial filed, and a trial had, resulting in a verdict- and judgment in favor of appellee for $3,449.
The assignment of errors questions the sufficiency of the complaint and the action of the court in overruling appellant’s motion for a new trial. It is insisted by appellant that the complaint does not show actionable negligence constituting the proximate cause of appellee’s injury; that facts must be stated showing the duty owing from the defendant to the plaintiff and a breach of said duty proximately causing the injury complained of; that the general statements that it was the duty of the defendant to do certain things, and that the place in question was one of peculiar danger, are mere conclusions, and are insufficient
Erom the facts set out, the law will imply the existence of the “underlying duty” as expressed in Pittsburgh, etc., R. Co. v. Lightheiser, supra. The law imposes upon the master the duty of using reasonable care to furnish his servant a safe place in which to work, but the complaint shows that appellant had not only no watchman or flagman at the crossing, nor any system of signals to give any warning to one driver of the approach of another, but had taken no precautions whatever to make the place reasonably safe for its employes.
Whether the plaintiff was guilty of contributory negligence in failing to leave his car and look for an approaching car was a question which properly might have been presented to the jury.
Judgment affirmed.